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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor -
Management Relations Statute (the Statute) and presents issues concerning the
negotiability of seven Union proposals.
1

The Agency maintains three Army Aviation Support Facilities (AASF). The
facility at Washington, Pennsylvania, supports those military units in western
Pennsylvania. Units in eastern Pennsylvania are supported by facilities located
at Fort Indiantown Gap and Avoca, Pennsylvania. National Guard technicians are
required to maintain compatibility between their military and civilian
assignments. See, for example, Association of Civilian Technicians, Montana Air
Chapter and Department of the Air Force, Montana Air National Guard.
Head-quarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717 (1985),
aff'd sub nom. Association of Civilian Technicians, Montana Chapter v. FLRA,
No. 86-1057 (D.C. Cir. Jan. 29, 1987); Martelon v. Temple, 747 F.2d 1348 (10th
Cir. 1984), cert. denied 471 U.S. 1135, 105 S.Ct. 2675 (1985). The negotiations
during which the disputed proposals arose stemmed from the Agency's having
required successful applicants for a particular civilian technician position to
be militarily compatible--that is, be assigned to a military unit at Fort
Indiantown Gap.

For the reasons discussed below, we find that Proposals 6 and 7 are
within the duty to bargain; and we dismiss the Union's petition for review as
it relates to Proposals 1-5.

II. Proposal 1

All Army Aviation Support Facilities within Pennsylvania are interlocked
as one, therefore all Technicians must maintain compatibility in CMF (Career
Military Field) related to their technician position as stated on Technicians
position description.

A. Positions of the Parties

The Union contends that, in general, this proposal and the other
proposals are intended to ameliorate the harmful effects of the
civilian/military compatibility requirement on the technicians insofar as their
civilian employment is concerned. It further describes the proposal as intended
to implement and enforce the Agency's regulation relating to military
compatibility.

The Agency contends that this proposal would require it to establish the
three AASFs as a single organizational entity. It argues that the proposal
would allow technicians to be assigned to an AASF based solely on their
CMF--Career Military Field (also known as MOS - Military Occupational
Specialty)--and without regard to military unit assignment. The Agency asserts
that the proposal is nonnegotiable because it excessively interferes with
management's rights to determine its organization, assign and direct employees,
assign work and determine the personnel by which Agency operations will be
conducted. It contends additionally that the proposal is nonnegotiable because
it concerns the military aspects of technician employment and, consequently,
does not concern conditions of employment within the meaning of the Statute. It
asserts that the proposal also conflicts with an Agency regulation for which a
compelling need exists.

B. Analysis and Conclusions

The Union does not explain precisely how the proposal is intended to
operate. It is clear that it is intended to overcome the requirement that
technicians have both their military and civilian assignments in the same unit
or a unit and facility supporting that unit. For example, currently a
technician militarily assigned to a unit supported by the Fort Indiantown Gap
AASF must have a civilian assignment to that AASF as opposed to one of the
other two AASFs. On its face, the proposal seeks to accomplish its end by
requiring the Agency to restructure its organization by eliminating any
distinctions between the three AASFs insofar as assigning responsibility for
providing support for a particular military unit. Thus there would be no need
for a technician to work at a particular AASF in order to achieve military
compatibility.

Under section 7106(a)(1) the right of an agency to determine its
organization encompasses the discretion to determine its internal
administrative and functional structure. See, for example, American Federation
of Government Employees, AFL - CIO, Local 3805 and Federal Home Loan Bank
Board, Boston District Office, 5 FLRA 693 (1981). This proposal would clearly
interfere with that right by requiring the Agency to eliminate the
organizational distinctions which it currently makes among the three AASFs in
designating them as separate activities with individual responsibilities for
providing support for specific military units.

The Union describes all of its proposals as generally intended to
ameliorate the harmful effects of the civilian/ military requirements which are
imposed by law and implementing agency regulation. See Montana Air National
Guard, 20 FLRA 717 (1985) and Martelon v. Temple, 747 F.2d 1348 (10th Cir.
1984). However, it has presented neither a specific claim that the proposal is
negotiable as an appropriate arrangement under section 7106(b)(3) nor provided
support for such a claim. In National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), we discussed
in detail the responsibilities of the parties to raise and address specific
matters concerning section 7106(b)(3) in negotiability appeals. Based on the
record, we do not reach that issue in the present case.
2

We find that Proposal 1 is nonnegotiable because it conflicts with the
Agency's right to determine its organization. In view of this finding, it is
unnecessary to address the Agency's other arguments as to the nonnegotiability
of this proposal.

III. Proposal 2

That management realign and assign, through competitive and merit
placement procedures, all Technicians and AGRs (Active Guard/Reserve) serving
in Technician positions to meet the standards set forth in para. C of TPR 300,
Section 7.8 (Inversion of Military Rank). (Inversion occurs where a civilian
technician is supervised by someone who is junior in terms of military rank.)

A. Positions of the Parties

The Union describes the proposal as seeking to implement a requirement
found in Agency regulation that military rank inversion not be permitted. It
further asserts that the proposal is intended to ameliorate any harmful effects
that might be produced by military compatibility requirements.

The Agency contends that the proposal is nonnegotiable because it
concerns the military aspects of technician employment. It also asserts that
the proposal excessively interferes with its right to determine its
organization; to assign and direct employees; to assign work and determine the
personnel by which agency operations will be conducted. Additionally, it argues
that the proposal concerns conditions of employment of non-unit employees.

B. Analysis and Conclusion

The Authority has previously held that proposals which seek to enforce
the Agency's prohibition on military grade inversion are not within the duty to
bargain because they concern the military aspects of technician employment. For
example, National Association of Government Employees, SEIU, AFL - CIO and
National Guard Bureau, Adjutant General, 26 FLRA No. 62 (1987) (Proposal 3).
This proposal is materially to the same effect in that it seeks to prescribe
methods to enforce this prohibition. It is nonnegotiable for the reasons
expressed in National Guard Bureau and the decision relied upon therein.

In view of this finding, it is unnecessary to address the other
arguments of the parties as to the negotiability of this proposal. As discussed
in conjunction with Proposal 1, the question of whether this proposal
constitutes an appropriate arrangement within the meaning of section 7106(b)(3)
is not properly before us.

IV. Proposal 3

All transfers which are a creation of NGB (National Guard Bureau) or the
employer (TAGPA) (the Adjutant General of Pennsylvania) through reorganizations
and/or consolidations, and are of no fault of the employee, whether they be
Technician or Military assignment, will not penalize or have adverse impact on
the Technician's selection for career enhancement/advancement of the Technician
civilian career progression.

A. Positions of the Parties

The Union again makes the same general argument as it raised regarding
Proposals 1 and 2, that this proposal is intended to ameliorate any harmful
effects which the military compatibility requirement may produce. It describes
this proposal as seeking to insure that where employees are transferred there
will be no negative impact on the employee's civilian career insofar as
advancement, promotion and career enhancement are concerned.

The Agency asserts that this proposal excessively interferes with
management's rights to determine organization; to assign and direct employees;
to assign work and to determine the personnel by which agency operations will
be conducted. It also argues that this proposal is nonnegotiable because it
concerns the military aspects of technician employment and, thus, does not
concern conditions of employment.

B. Analysis and Conclusion

The Agency interprets the proposal as preventing it from transferring
employees to other work sites when the transfer would result in any negative
effects on the employee's career.

We do not read the proposal as going so far as to actually prohibit
transfers. Rather, it seeks to insure that where transfers occur, the employees
will be guaranteed the same level of career opportunities which they had before
their transfer. Based on this interpretation, we find that this proposal would
have the same effect as proposals which the Authority has held nonnegotiable
because they would have required an agency to establish its organizational
structure in a manner assuring promotional opportunities for its employees. For
example, American Federation of Government Employees, AFL - CIO, Local
3742 and Department of the Army, Headquarters, 98th Division (Training),
Webster, New York, 11 FLRA 189 (1983). This proposal would require that, if the
Agency were to transfer an employee to a position which lacked promotional,
advancement or enhancement opportunities equivalent to those of the employee's
previous position, the Agency would be obligated to redesign the position
and/or other aspects of its organizational structure in order to create the
same level promotional/advancement/enhancement opportunities in the new
position as existed in the employee's previous position. The Authority has
found that proposals with such an effect directly interfere with the right of
an agency to determine its organization. We reach the same conclusion as to
this proposal insofar as it concerns the technician's civilian career. Insofar
as it is intended to apply to the progression/enhancement of the technician's
military career, we find that it concerns the military aspects of technician
employment and does not concern conditions of employment within the meaning of
the Statute. See, for example, National Association of Government Employees,
SEIU, AFL - CIO and National Guard Bureau Adjutant General, 26 FLRA No. 62
(1987) (Proposal 3).

In view of these findings, it is unnecessary to pass upon the Agency's
other arguments as to the nonnegotiability of this proposal. Moreover, for the
reasons discussed in conjunction with Proposal 1, we do not view the question
of whether this proposal is an appropriate arrangement within the meaning of
section 7106(b)(3) as being properly before us. Based on the above, we find
that Proposal 3 is not within the duty to bargain.

V. Proposals 4 and 5

Proposal 4

All currently employed technicians at all 3 Aviation locations be
grandfathered for compatibility of support assignment.

Proposal 5

All new personnel assigned to Eastern PA will be assigned to units
supported by Avoca or FTIG and all personnel assigned to Western PA will be
assigned to units supported by Little Washington, PA.

A. Positions of the Parties

The Union describes these proposals as seeking to negotiate the location
where civilian technicians may be transferred. Proposal 4 seeks to
"grandfather" currently employed technicians at the three AASFs. Proposal 5
seeks to have new employees "assigned as civilians to two designated work
sites." It asserts that the proposals are intended to negotiate the impact of
military requirements on the technicians' civilian capacity as opposed to the
military decisions themselves.

The Agency argues that the proposals would limit its ability to assign
technicians to positions which are compatible with the military units of which
they are members. It asserts that Proposal 5 would require it to "restructure"
its AASF administration into two geographical, not military, units for
compatibility purposes. It contends that these two proposals are nonnegotiable
because they excessively interfere with its rights to determine its
organization; to assign and direct employees; and to assign work and determine
the personnel by which agency operations will be conducted. It also argues that
the proposals concern the military aspects of technician employment and, thus,
do not concern conditions of employment. Additionally, it argues that the
proposals conflict with an Agency regulation for which a compelling need
exists.

B. Analysis and Conclusion

It is unclear from the language of the proposals and the record,
including the Union's statement of their intended meaning, how these proposals
are intended to operate. it appears that Proposal 4 is meant to allow
technicians to retain in some unspecified way their civilian employment at the
AASF at which they are currently assigned. We adopt this interpretation for
purposes of decision. Two means seem to be available which would allow an
employee's civilian assignment to remain unchanged:

1) Military assignment could be tailored to correspond to the civilian
assignment; or

2) An exception could be made to the compatibility requirement where
there is a discrepancy between military and civilian assignment.

Based on either alternative, we find that Proposal 4 concerns the
military aspects of technician employment. Under the first alternative the
proposal would dictate a change of military assignment; and under the second,
the proposal would dictate an exception to the requirement that the technician
hold a compatible military position. The Authority has consistently held that
matters pertaining to the military aspects of technician employment do not
concern conditions of employment within the meaning of the Statute. For
example, National Federation of Federal Employees, Local 1655 and Adjutant
General of Illinois, 20 FLRA 829 (1985). Thus, we find that Proposal 4 is not
within the duty to bargain.

Proposal 5 is susceptible to different interpretations. The Agency
suggests that it would require management to give employees who are assigned to
military units in eastern Pennsylvania the option of civilian employment at
either Avoca or Fort Indiantown Gap. Under this interpretation, the proposal
would effectively require a restructuring of the Agency's organization similar
to that discussed in conjunction with holding Proposal I nonnegotiable; or it
would require elimination of compatibility requirements insofar as technicians
assigned to units in eastern Pennsylvania are concerned. In any event, the
proposal is nonnegotiable because it would either interfere with the Agency's
discretion to determine its organization or pertain to the military aspects of
technician employment.

Proposal 5 may also be interpreted not as giving technicians a choice
between Fort Indiantown Gap and Avoca but, rather, as incorporating the
Agency's current organizational structure in the agreement. In this regard, the
Agency states that military units physically located in the western part of the
state are supported by the AASF at Washington, Pa., while those in the eastern
part are supported by either Fort Indiantown Gap or Avoca. Agency Statement of
Position at 1. Even with this intended meaning, however, the proposal is
nonnegotiable. The right to determine organization must necessarily include the
ability to modify existing organizational structure. Under this interpretation,
the proposal would, in effect, require management to contractually bind itself
to continue its current organizational structure for the life of the agreement.
Compare National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588, 591 (1981).

In view of these findings, it is unnecessary to pass upon the Agency's
other arguments as to the nonnegotiability of these proposals. Once
again, for the reasons expressed in conjunction with Proposal 1, we do not view
the question of whether these proposals constitute appropriate arrangements
within the meaning of section 7106(b)(3) as being properly before us. Based on
the above, we find that Proposals 4 and 5 are not within the duty to bargain.

VI. Proposal 6

All PDs (Position Description) will state assignment and _ _ _.

A. Positions of the Parties

The petition was submitted with this proposal containing three blocked
out characters where the blanks appear. The union does not indicate what
meaning or significance is to be attached to the blocked out characters. The
petition contains no statement as to the meaning to be attributed to this
specific proposal.

The Agency asserts that it construes the blocked out characters as being
"MOS" --an acronym for Military Occupational Specialty. It therefore interprets
the proposal as requiring that a statement as to the technician's military
assignment and MOS be placed in position descriptions. Based on this
interpretation, it argues that the proposal concerns the military aspects of
technician employment and for that reason is not within the duty to bargain. It
further asserts that this proposal is not an "appropriate arrangement" within
the meaning of section 7106(b)(3) because it does not concern the exercise of
any management right under section 7106(a) or (b)(1).

B. Analysis and Conclusion

We make no determination as to what the blocked out characters which
appear in this proposal may have symbolized before they were deleted. We rule
upon the proposal as constituted in the Union's petition which was submitted to
us. Therefore, we read the proposal as requiring that a statement as to
"assignment" be incorporated in the technician position description. This
statement could encompass military assignment as well as civilian assignment.
Even if this interpretation is so, we do not construe the proposal as
concerning the military aspect of technician employment. Rather, the proposal
is focused on the contents of the civilian technician's position description.
It in no manner determines or affects the military aspects of the
technician's employment. Its relationship to the military aspects of technician
employment is limited to a requirement that a statement reflecting existing
facts as to military assignment be incorporated in the civilian technician's
position description. Compare National Federation of Federal Employees, Local
1694 and Oklahoma Army National Guard, Oklahoma City, Oklahoma, 14 FLRA 183
(1984), in which the Authority found negotiable a proposal to delete from
technicians' position descriptions a sentence referring to MOS.

We reject the Agency's assertion that the proposal concerns the military
aspects of employment and, consequently, does not concern conditions of
employment. Further, it does not affect in any manner the work which may be
assigned to technicians. In view of the fact that the Agency acknowledges that
the proposal would not interfere with the exercise of its management rights and
that there is no basis in the record for concluding that it would, we find that
Proposal 6 is within the duty to bargain.

VII. Proposal 7

Grievances deriving from this section will be transmitted to Commanders
at 1st step and then to 4th and Arb. to expedite grievance.

A. Positions of the Parties

The Union describes this proposal as seeking expedited consideration of
grievances covering the issues involved in the proposals. The Union argues
that, assuming that the proposals are negotiable, bargaining concerning the
grievance procedure is mandatory.

The Agency interprets the proposal as requiring that any grievance
arising from the interpretation/application of any agreement reached on these
proposals will be processed through an expedited procedure. It argues that this
proposal is non-negotiable because, by virtue of the nature of the proposals,
it would subject matters relating to the military aspects of technician
employment to the grievance and arbitration procedures.

B. Analysis and Conclusion

Based on the parties' description of this proposal, it would only
subject the military aspects of technician employment to the grievance and
arbitration procedures if such matters were incorporated in an agreement
reached with respect to the foregoing proposals. Inasmuch as we would not find
that a proposal which concerned the military aspects of technician employment
is within the duty to bargain, the Agency's arguments that such a provision
would be incorporated in the agreement to which Proposal 7 applies is not
persuasive. we interpret the proposal as seeking the expedited processing of
grievances as opposed to seeking to define the scope of the grievance procedure
to cover the military aspects of technician employment. Based on this
interpretation, we find that Proposal 7 is within the duty to bargain.

VIII. Order

The Union's petition for review as to Proposals 1 through 5 is
dismissed. The Agency shall upon request (or as otherwise agreed to by the
parties) bargain concerning Proposals 6 and 7.
3

Footnote 1 The Union's response to the Agency's
statement of position was untimely filed and was not considered.

Footnote 2 The parties are responsible for
creating the record upon which we will resolve negotiability disputes. National
Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir.
1982). A party failing to assume this burden acts at its peril.

Footnote 3 In finding that these proposals are
within the duty to bargain, we make no judgment as to their merits.